The defendant was a website designer contracted to design a website which was to sell antiques on-line.

Topic: Contract

Who: Antiquesportfolio.com v Rodney Fitch & Co

When: Spring and June 2000

Where: Chancery Division of the High Court. London

What happened:

The defendant was a website designer contracted to design a website which was to sell antiques on-line. The client discovered that the designer had included in the site tiny icons and banners using images of antiques which were copied from photographs in a well known antiques encyclopaedia. The contract between the client and the designer said nothing about copyright , but the client sued for return of all monies paid to the designer on grounds of an alleged breach of an implied term in the contract obliging the designer to supply a site which did not infringe a third party’s copyright. The Chancery Judge held also that there should be implied into the website design contract a term obliging Fitch to use reasonable care and skill, a term which is implied by statute into all English law-governed contracts for the supply of services. Here, this effectively meant an obligation not to knowingly use material that infringed a third party’s rights without warning the client of this.

Also it was held that insofar as Fitch was supplying goods under the contract in the form of design material, this had to be “fit for its purpose”. This was again no more than a statement of the legally obvious, as UK statute implies such a term into all contracts for the supply of goods.

The judge deferred judgment on the remainder of the points at issue in the case, including the crucial questions of whether, in this particular case, Fitch were in breach of the terms the Judge had identified and whether they should repay all monies paid. This was only an application by Antiquesportfolio for “summary” or quick judgement, early in the case, on points run by the designer which Antiquesportfolio said were unsustainable.

Why this matters:

When a dotcom retains a website designer there may be no written contract at all. Alternatively there may be something in writing, but it might be silent on crucial issues such as ownership and clearance of copyright and other intellectual property rights. Despite this, UK statute will imply into the contract certain obligations which, as this case shows, will very likely have direct relevance to intellectual property aspects. Whatever the outcome of this case, however it must surely be preferable to draw up and agree appropriate contractual provisions in the first place rather than leave oneself open to the lottery of what precise obligation the court will “imply” into the contract at trial.